Former PM predicts “large” damages claim and “serious legal action” by Kim Dotcom following GCSB’s bungling of its surveillance. “Mr Dotcom is the stuff out of which leading cases are made”. Sunday 30 September, 2012

Q+A: Greg Boyed interviews Geoffrey Palmer

Former PM predicts “large” damages claim and “serious legal action” by Kim Dotcom following GCSB’s bungling of its surveillance

“Mr Dotcom is the stuff out of which leading cases are made”.

Boyed: …Should he [Bill English] have asked more questions and been more open with his Prime Minister?
Palmer: “The difficulty is that if Mr English telephoned Mr Key overseas to talk to him about this the communication could be intercepted by foreign people, so he probably didn’t want to do that…”
Boyed: So what you’re saying is that it’s not beyond the realms of possibility that an email or a phone call or whatever between Bill English and John Key when he was overseas could have been intercepted, they could have been spied on?
Palmer: “Absolutely…”

Oversight of intelligence agencies sufficient, Palmer says – no oversight at all before 2003, “and it’s because of that legislation that we now know that we acted unlawfully”

New Zealand has “doesn’t have the resources” to monitor spy agencies as fully as “you would wish”

Rejects calls for a further inquiry: “…these intelligence agencies have to be secret. If you’re going to conduct a commission of inquiry in public, they won’t be secret”.

“…the way it has come out, and what has been done as a result of it does mean that the system is working”

“We do have the rule of law in relation to security agencies in New Zealand, and that is a great comfort”

PM should have known about the Dotcom case, but “that’s a failure on his officials… this was incompetent by any standards”.

GCSB does very useful work – helped Palmer as minister by monitoring foreign fishing fleets and learning how many albacore tuna had been caught.

“We had the numbers and that was the end of that, and we were able to negotiate a very successful treaty”

GREG BOYED
Opposition parties say it’s not enough. Labour says it’s been a whitewash. In your opinion, is it sufficient?

GEOFFREY PALMER, Former Prime Minister
Well, I really do believe that what happened here was wrong. It was certainly illegal, and it demonstrated very sloppy behaviour on behalf of the officials who did it. But the Prime Minister’s reaction to it as the minister in charge of the agency was to really berate them and get stuck into them and ensure that they took drastic action to change this. So I think that what has been done will certainly stop the difficulties that the report demonstrates. I don’t think there’s any doubt that the prime minster has taken a very serious view of this, and he has given his officials a rocket.

GREG Does there need to be another report? Does there need to be a commission of inquiry? Should something else happen?

GEOFFREY Well, I don’t think there does need to be for this reason: that these intelligence agencies have to be secret. If you’re going to conduct a commission of inquiry in public, they won’t be secret. There is a select committee set up by statute in parliament that can look at these. There are many more accountabilities on the security agencies than there ever were before. I mean, it wasn’t until 2003 that the Government Communications Security Bureau actually had legislation, and it’s because of that legislation that we now know that they acted unlawfully. Before that, they functioned, but they didn’t have any legislation. We do have the rule of law in relation to security agencies in New Zealand, and that is a great comfort, I think.

GREG Do you accept what has happened was a mistake – a sloppy mistake, to use your words – or was there something more insidious going on here?

GEOFFREY Well, of course, it’s very difficult to say if you don’t know the circumstances, and the Prime Minister is in a position to find out, and it seems to me that incompetence is more usually the explanation than anything insidious. But this was certainly incompetent by any standard.

GREG This was a major breach of our law. It was New Zealanders being spied on in New Zealand, wasn’t it?

GEOFFREY Yes, and there will be more legal consequences from this. This activity was unlawful and it could lead to very serious actions being taken both in the civil courts and very possibly in the criminal courts against the people who did this.

GREG Now, when you say legal action, presumably you mean suing, Kim Dotcom, is that what you’re talking about? And what sort of money could you be talking about?

GEOFFREY Yes, actions for damages, because what has happened here is clearly a serious breach of privacy at the very least, and that is now a tort in New Zealand, a civil wrong, for which you can get damages. It seems to be that there will be quite large legal proceedings that follow from all of this. Mr Dotcom is the stuff out of which leading cases are made.

GREG Do we need better oversight of our intelligence agencies than what we’ve got now, given the power they wield? In this realm, this is about as intrusive as it can get.

GEOFFREY We have very significant powers. We’ve got the piece of legislation that sets up the inspector general of security who was active in this case and who produced a report at the direction of the prime minster, and he has very wide powers under his own statute.

GREG That said, we are talking about limited resources here. We’ve got the inspector general, a retired judge and a PA and that’s it. That’s our last port of call. Does there need to be more teeth, more people put in that area?

GEOFFREY Well, you could always say that about many activities in the New Zealand government. New Zealand is a small country and it has as many statutes as a big country, and it doesn’t have the resources or ways to make it work as well as you would wish. I think we do pretty well in this area, and it seems to me that what happened in all of this, and the way it has come out, and what has been done as a result of it does mean that the system is working. I mean, the New Zealand public knows about this; the Prime Minister finds it unacceptable, he’s apologised to the public and Mr Dotcom, and big changes are afoot. That’s what ministerial responsibility is all about.

GREG I want to talk about the government’s role in this. This is something from opposition leader David Shearer: ‘It’s astonishing that this report fails to deal with how the Prime Minister managed to be so blissfully unaware of what was going on under his own nose when he’s the person with sole democratic oversight. It is farcical.’ Are you surprised that the Prime Minister, as a former prime minister yourself, wasn’t more on top of a major major case like this?

GEOFFREY Well, it’s very difficult to put myself in his position. He certainly took action when he found out about it, but the problem is that he wasn’t told about it. Now, that’s a failure on his officials. It’s not his failure, it seems to me. I really do think that you have to remember that these agencies operate secretly, and if all their doings were made public, they’d be useless to the government. And in fact, they’re very useful. Let me just give you an example of why the GCSB is so useful. When I was a minister we were conducting a big campaign against driftnet fishing. The GCSB intercepted a number of communications from foreign fishing fleets about how many albacore tuna were being caught by them. Now, in the negotiations we were having, there were denials that it was a problem. They said not enough fish were being taken so it really wasn’t a problem. Well, we had the numbers and that was the end of that, and we were able to negotiate a very successful treaty about that. So this is an agency that helps New Zealand in very positive ways in many, many different fields.

GREG We’ve got your thoughts on John Key – that he was simply too far at the end of the chain to find out in time. Bill English, though, we now know wasn’t. He was in the midst of it. He signed this off. Should he have been tougher? Should he have asked more questions and been more open with his Prime Minister?

GEOFFREY Well, the difficulty is that if Mr English telephoned Mr Key overseas to talk to him about this the communication could be intercepted by foreign people, so he probably didn’t want to do that. I mean, one of the things the GCSB advises you about are the problems of intercepted government communications, and that’s one of the prime reasons they exist, to prevent the government information systems being invaded or corrupted. And indeed I had a very interesting interview with the GCSB before I did this inquiry in New York about Israel and Turkey. They warned me of how my cellphone could be intercepted. They gave me a little package to put it in so no one could find out where I was. They provide a great deal of advice which is very helpful to government ministers and to government officials about how to protect New Zealand security interests and stop our secrets getting into the hands of other people.

GREG So what you’re saying is that it’s not beyond the realms of possibility that an email or a phone call or whatever between Bill English and John Key when he was overseas could have been intercepted, they could have been spied on.

GEOFFREY Absolutely. I mean, email is an open communication. I mean, anyone can intercept those.